Austin Lawyer, June 2021 by Austin Bar Association

austinbar.org JUNE 2021 | VOLUME 30, NUMBER 5

Tributes to Roy Minton and Lloyd Lochridge Two Legal Legends Lost

he Austin legal community lost two legends in recent months. Roy Q. Minton passed away on March 25, 2021 at the age of 89. Lloyd P. Lochridge, Jr. followed on April 13, 2021 at the age of 103. Their legacies will live forever and they will be greatly missed.

ROY MINTON Sam Bassett of Minton, Bassett, Flores & Carsey had this to say about his mentor and friend, Roy Minton: I was an outsider to the Red Brick House when Roy asked me to join in late 2000. Soon thereafter, I was trying a murder case in Georgetown with Roy and realized I had been invited to work with one of the very best courtroom advocates. We succeeded in getting a lesser manslaughter verdict much to the chagrin of John Bradley, who personally tried the case. That is one of many predictable stories you might

hear from many lawyers who worked with him over the years. He was awesome to watch preparing for trial as much as performing at trial. He truly represented a high-profile clientele that included Frank Erwin, Billy Clayton, Jim Mattox, Kino Flores, Colton Pitonyak, Jeff Wentworth, Tom Craddick, Houston Lighting & Power, Jim Bob Moffett, and so many others.

Some of the less publicized qualities of Roy Q. Minton: • He detested profanity LEFT: Roy Minton. RIGHT: Lloyd Lochridge. (Photos courtesy of the State Bar of Texas Archives.) (though he threw in an occasional “dammit”); • He was very liberal politto walk her to her car when difficult to get in Austin; ically. He didn’t hesitate to she came by the office; • He adored his pets, one tell the many Republicans • He doted over his five time stopping a meeting he represented (often saychildren and loved working with a high-profile client ing, “You need to know, I’m with his sons in the at 5 p.m. because Barbara a LIBERAL Democrat!); practice; was out of town and he had • He adored his wife Barba• He was not a fan of to feed the dog; ra—always stopping whatorganized religion but was • He loved to fly. A former ever meeting or phone call a “spiritualist”—often military pilot, he enjoyed flytalking to me about moing his twin engine Baron; [Roy Minton] had a great sense of humor. ments when “the invisi• He had a great sense of bles” gave him a helping humor. Sometimes, in the Sometimes, in the middle of trial, he’d hand in and out of the middle of trial, he’d look look at my worried face and say “You just courtroom; at my worried face and say • He set fees too low. In “You just want to try the want to try the EASY ones?” his later years of practice, EASY ones?”; and he would joke, “There • I observed him to be kind is a point in your career and warm hearted, very where your rate should go accepting of people from DOWN!”; all walks of life, despite his • He and Charlie Burton reputation as a ruthless would sleep on courthouse litigator/defender. benches to hustle court For me, his death is a moment appointments in the 60s to pause and be grateful to when a criminal case was continued on page 8

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CONTENTS

AUSTINLAWYER JUNE 2021 | VOLUME 30, NUMBER 5 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

ONLINE austinbar.org

Tributes to Roy Minton and Lloyd Lochridge

10 Announcing New Officers and Members of the Board

Welcome to the Board of Directors for Bar Year 2021-22

12 A Brief History of the Austin Bar's LGBT Law

Section /Austin LGBT Bar Association

25 Donate to Help Children at the Civil and Family

Courts Facility Austin Bar/AYLA Leadership Academy Class of 2021 Class Project

16 Be Well 19 Opening Statement 21 Third Court of Appeals

23 24 26 28 30

ONLINE

President's Column

14 Briefs

Civil Update Third Court of Appeals Criminal Update Federal Civil Court Update Criminal Court News AYLA Entre Nous Practice Pointers

Judge Brenda P Kennedy Announces Her Retirement Her term concludes on Dec. 31, 2022 Missed the Equity Summit on May 14, 2021? Video of the Equity Summit Now Available

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PRESIDENT'S COLUMN KENNON WOOTEN, SCOTT DOUGLASS & McCONNICO

A Year In Review Looking Back on the 2020-21 Bar Year

hen we look back on 2020-21, all of us will have stories about how life as we knew it changed. We endured a pandemic. As a result, many of us learned how to do our jobs from home, and many of us lost friends and loved ones. In the wake of inflammatory rhetoric surrounding COVID-19, we witnessed a surge of anti-Asian racism. In the wake of George Floyd’s death in May 2020, we witnessed increased awareness and action in relation to racism and antiracism. In February 2021, we experienced Winter Storm Uri and associated power outages, water shortages, and property damage. And, between July 2020 and May 2021, we said goodbye to several local legal legends, including William (“Bill”) Hilgers, Roy Minton, Lloyd Lochridge, and Broadus Spivey. These are just a few of the things that impacted us and, in some instances, changed our lives forever. When preparing to serve as Austin Bar Association president during the 2020-21 bar year, I knew there was no way to predict how the unprecedented year would unfold and that there was no playbook for how to maintain our strength and well-being as an organization and as individuals. But I also knew that our organization is comprised of remarkable, resilient people who can weather almost any storm and who have the sensitivity and 6

AUSTINLAWYER | JUNE 2021

skills required to help others in times of need. Thanks to the dedication and diligence of our board, committees, sections, and staff members, the 2020-21 bar year has been marked by productivity and progress for the Austin Bar. I am grateful for everything we accomplished together. This article spotlights a few of those accomplishments. CONTINUING LEGAL EDUCATION Thanks to Zoom, the Austin Bar pivoted readily to virtual CLE programming during the pandemic and offered more than 70 hours of free CLE credit to its members. When our annual Bench Bar Conference had to be rescheduled due to the pandemic, Amanda Arriaga and Justice Chari Kelly coordinated Couch Bar, a fun virtual event with innovative programming. Arriaga stepped up again later in the year to coordinate a free CLE program geared toward government lawyers. And, after regrouping, the Bench Bar Committee—chaired by Rob Frazer, ALJ Megan Honey Johnson, Amy Meredith, Maitreya Tomlinson, Judge Kim Williams, and Judge Gisela Triana—hosted a successful, virtual Bench Bar Conference in September 2020. PRO BONO INITIATIVES Through monthly meetings of stakeholders in the legal-services community, the Pro Bono Committee—chaired by Bill Christian, Caitlin Haney Johnston, and ALJ Johnson—helped connect attorneys and paralegals with pro bono opportunities through the unique challenges presented by the pandemic and Winter Storm Uri. The Austin Bar also hosted a CLE program to teach lawyers how

Thanks to Zoom, the Austin Bar pivoted readily to virtual CLE programming during the pandemic and offered more than 70 hours of free CLE credit to its members. to further family reunification for children in immigration custody. LAWYER WELL-BEING Our Lawyer Well-Being Committee—chaired by Danielle Ahlrich and Diana Reinhart—coordinated multiple virtual programs designed to foster our well-being and keep us connected with each other despite social distancing necessitated by the pandemic. Thanks to Rachel McKenna, these programs included the new Cooking with the Judiciary series, through which local judges taught Austin Bar members how to cook delicious dishes. Beyond the online programming, committee members ensured that this publication regularly included articles focused on issues relating

to mental health and overall well-being. During a tumultuous time that tested all of us, the Lawyer Well-Being Committee provided much-needed awareness and comfort. VIRTUAL GALA For the first time ever, we had a virtual gala for the Austin Bar Foundation. Our gala chairs—Arriaga, Elliot Beck, and Mary-Ellen Wyatt—confronted the task of transitioning to the virtual realm with bravery, creativity, and determination. In keeping with the Austin Bar’s focus on equity this year, the theme of the gala was “Around the World,” celebrating our diversity and illustrating the idea that, despite our differences, we are all connected and all part

The Austin Bar has made great strides in relation to equity this year, thanks to the Equity Committee, formed shortly before the bar year began. With the support of dedicated, compassionate committee members, they did so many things to increase awareness and create a more inclusive, equitable culture.

of the human race. Arriaga, Beck, and Wyatt brought the theme to life by doing things like (1) creating a Spotify playlist featuring music from around the world, (2) partnering with local restaurants to provide diverse food options for guests, and (3) including items from local businesses, like a signature cocktail kit from HipStirs, in party boxes for guests. They also coordinated an awesome virtual photo booth, which helped guests feel connected, and an interactive auction, through which funds were raised to support the Foundation's grant program benefiting legal-related programs in the area. As always, a gala highlight was the recognition of several award winners. Videos honoring winners of the Distinguished Lawyer Award are available at austinbar.org/ foundation/gala/.

HISTORY & TRADITIONS Reverend Joseph C. Parker, Jr.—the Austin Bar’s first Black president—continued his service to the bar and broader community by stepping up to chair the History & Traditions Committee. Under his leadership, the committee developed a thoughtful plan to conduct oral-history interviews of Austin attorneys and judges in order to preserve the history of the Austin Bar, the Austin legal community, and significant legal events in the Austin area. Please be on the lookout for the work of this committee, as we endeavor to document our history without gloss. EQUITY The Austin Bar has made great strides in relation to equity this

year. This progress would not have been possible without the Equity Committee, formed shortly before the bar year began. The committee was led by Judge Maya Guerra Gamble (Chair), Judge George C. Thomas, former Justice Craig Enoch, Mindy Gulati, Craig Moore, Ayeola Williams, Drew Williams, and Cathy Garza. With the support of dedicated, compassionate committee members, they did so many things to increase awareness and create a more inclusive, equitable culture. Examples include supporting a 21-day racial equity habit-building challenge, compiling free resources for the Austin Bar’s website, coordinating events to increase awareness about inequities and racial injustice (like a watch party for 13th, as well as book-club and

podcast discussions), preparing an equity statement for the Austin Bar, drafting implicit-bias jury instructions, and planning the Austin Bar’s inaugural Equity Summit which generated so much interest that it sold out weeks before it occurred. At every step, the Austin Bar’s board of directors supported the Equity Committee’s initiatives. The board also augmented the committee’s work by doing things like (1) unanimously passing a joint resolution (with the Austin Young Lawyers Association) focused on honoring and advancing diversity, equity, and inclusion; and (2) implementing the Austin Bar’s first Equitable and Inclusive Vendor Policy, with invaluable assistance from the LGBT Law Section’s Chair Denise Hernandez, Chair-Elect Drew Williams, and At-Large Austin Bar Representative Leslie Hill. At the beginning of this bar year, in the aforementioned joint resolution, Austin Bar leaders committed to strive to lay down the burdens of hate and divisiveness, respect the dignity and worth of every human being, and move forward in our progress toward a more unified bar and an equitable, just society that is at peace with itself. While a lot of work remains to be done, I am proud of what we have accomplished together and grateful to be part of such an AUSTIN LAWYER AL AL inspiring team.

JUNE 2021 | AUSTINLAWYER

Tributes to Roy Minton and Lloyd Lochridge continued from cover

have worked with him. More importantly, it is a moment to remember that he taught me more about life than about law.

LLOYD LOCHRIDGE Dirk Jordan offers his personal remembrances of Lloyd Lochridge: Mr. Lloyd Lochridge lived life completely. Not just the length of it, although that was an extraordinary 103 years, but also in the depth and breadth of it. He lived a big life. He was active, charming, encouraging, fun, and loved being around people. Even in his later years he would come to parties at my house and would fully engage with the other guests, enjoying seeing old friends and making new ones. He loved to talk (like most lawyers). I met Mr. Lochridge in 1990 when I clerked for McGinnis Lochridge during my second

year in law school. His reputation and accomplishments were well known, and I had some trepidations about meeting him, but he could not have been more gracious. We continued running into each other over the years, primarily at the Robert Calvert Inn of Court, of which he was a founding member. In 2009, several Calvert Inn members decided to form a new Inn of Court. From the very first we decided to name the new Inn after Mr. Lochridge. No one we knew personified the ideals of the American Inns of Court more than him. His commitment to civility, professionalism, and ethics was well known. One of my vivid recollections of Mr. Lochridge was when he was informed that the new

[Lloyd Lochridge] was our elder statesman, and he cannot be replaced. But we can honor him by committing to the principles he demonstrated in his practice and in his life—civility, professionalism, and ethics. Inn would be named after him. Judge Robert Pitman, Martha Dickie, and I asked to meet with him but did not tell him why. He attended the meeting with his son Pat Lochridge (who knew what was coming). When Judge Pitman told him, he seemed at a loss for words, and then his humility kicked in because he said he did not deserve the honor. But he was genuinely pleased by it. He was a faithful member of the Inn, attending meetings every

year until COVID stopped all in-person gatherings. At the meetings, he engaged every member who wanted to visit with him, asking questions about them and telling stories. And he could tell stories. He was never without a story; any question someone asked would elicit a response, “I remember when….” He loved to mentor younger lawyers (which applies to most of us). He looked for ways to instruct and provide the benefit of his personal experience, and it was always pertinent. He was concerned about the legal profession and worried about the lack of civility and professionalism in the litigation community. Mr. Lochridge will be missed by all who knew him. I count myself one of the lucky ones whom he considered a friend. He was our elder statesman, and he cannot be replaced. But we can honor him by committing to the principles he demonstrated in his practice and in his life—civility, professionalism, AUSTIN LAWYER AL AL and ethics. Editor's Note: Another legal legend, Broadus Spivey, passed away after this issue was ready for print. A tribute to him will appear in the next issue of Austin Lawyer.

TOP LEFT: Roy Minton, photograhped for a magazine. TOP RIGHT: Lloyd Lochridge speaking at a SBOT assembly. BOTTOM LEFT: Roy Minton. BOTTOM RIGHT: Lloyd Lochridge. (Photos courtesy of the State Bar of Texas Archives.)

AUSTINLAWYER | JUNE 2021

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Announcing New Officers and Members of the Board Welcome to the Board of Directors for Bar Year 2021-22

ith no uncontested races, the Austin Bar Association announces its new officers and board of directors for the upcoming bar year. Current Austin Bar President Kennon Wooten will become past-president when President David Courreges takes office on July 1, 2021. Courreges has been a member of the Austin Bar Association’s Board of Directors since 2015, serving in the capacity as treasurer, secretary, and two terms as a director. He has co-chaired the Austin Bar’s Legislative Committee, LawRelated Education Committee, and the Wildfire Legal Response team, and is the co-founder of the Austin Bar/AYLA Leadership Academy. He served as president of AYLA from 2014-15, vice president of the Texas Young Lawyers Association from 2010-11, and has represented the Austin Bar as a member of the Travis County Civil and Family Courthouse Bond Advisory Committee and the City of Austin’s Downtown Community Court Advisory Board. He is the Director of Legal and Compliance, BSA Officer, and Senior Corporate Counsel at University Federal Credit Union. Rounding out the executive committee are President-Elect Amanda Arriaga, Secretary Justice Chari Kelly, and Treasurer

David Courreges

Amanda Arriaga

Justice Chari Kelly

Mary Ellen King

Nadia Bettac

Rob Frazer

Leslie Hill

Maitreya Tomlinson

Mary Ellen King. Arriaga has served as secretary and treasurer of the Austin Bar, as well as chair of the Austin Bar Gala Committee for the past three years. She was president of AYLA in 2014 and has been active on the Austin Bar board since 2015. Justice Kelly is a U.S. Army veteran and a justice on the Texas Third District Court of Appeals. She is a former AYLA president and graduate of the Austin Bar/ AYLA Leadership Academy. Before her election as a director to the Austin Bar board in 2018, she served as the chair for AYLA’s

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Runway for Justice from 2015-17. She is board-certified in criminal law by TBLS and the National Board of Trial Advocacy and also serves on the Litigation Council for the State Bar of Texas. King practices civil litigation in the Austin office of Richie & Gueringer. She has served on the board of directors for both the Austin Bar and AYLA. She was the 2019-20 Austin Bar Outstanding Director and the 2012 AYLA Outstanding Young Lawyer. She received AYLA’s President’s Award of Merit in 2013, and was a member of the Austin Bar/

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AYLA Leadership Academy. She also served as Judicial Reception Committee Chair from 2010-14 and Austin Bar Foundation Gala co-chair in 2020 and 2021. She was a member of the Solo and Small Firm Section where she has served as chair, vice-chair, and programming committee chair. Nadia Bettac, Rob Frazer, Leslie Hill, and Maitreya Tomlinson will serve two-year terms on the Austin Bar board of directors, with terms expiring in 2023. Bettac is an insurance defense litigator for Farmers Insurance. She was an award-winning direc-

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tor for AYLA, co-chaired Runway for Justice, volunteered for AYLA's Holiday Program (formerly known as "Reindeer Games"), Bar and Grill musical, Women’s Resource Fair, and the Austin Bar Gala. She is a member of the Travis County Women Lawyers Association and Robert W. Calvert American Inn of Court. She is an adjunct professor and championship-winning mock trial coach at the UT School of Law. Frazer is a board-certified family law attorney practicing primarily in Austin. He has been an active member of the Austin Bar for many years and has served on the Bench Bar, Austin Bar Gala, and Law-Related Legal Education committees, and is a graduate of the Austin Bar/AYLA Leadership Academy. He serves on the Leaders for Literacy Committee and is an active member of St. Michael’s Episcopal Church. Hill is the chief counsel of the Travis County Office of Child Representation (OCR) and is a NACC Child Welfare Law Specialist. Prior to working at OCR, she was a prosecutor at the District Attorney’s and County Attorney’s offices, where she worked on the CPS and protective order dockets. She has served as the Legal Services Director at SafePlace, and as a mediator in private practice. Hill serves as the LGBT Section liaison to the Austin Bar board. She is a member of the Adoption Day Committee and the LGBT and Family Law sections. She has also proudly served as a board member for Lawyer Referral Service and

for Asian Family Support Services of Austin (Saheli). Tomlinson is a board-certified civil appellate attorney and the founder of the Tomlinson Firm. He is the chair of the Civil Appellate Section and co-chair of the Bench Bar Committee. Tomlinson has also served on the Austin Bar’s Jury Trial Task Force. In addition, he currently serves on the State Bar’s Civil Appellate Section’s Amicus Committee and the Third Court of Appeals Pro Bono Committee. He is a member of the Robert W. Calvert American Inn of Court and is a fellow of the Texas State Bar and Austin Bar Foundations. The new directors will join Leslie Boykin, Judge Maya Guerra Gamble, Amy Meredith, and Craig Moore, whose terms expire in 2022. The officers and directors are joined on the Austin Bar board of directors by the chairs of all Austin Bar sections, the AYLA president and president-elect, and representatives from local affinity bar associations. Also serving are ex-officio members, including local delegates to the American Bar Association, the local representatives to the State Bar of Texas board of directors, and representatives from the Association of Legal Administrators, Capital Area Paralegal Association, Austin Legal Professionals Association, Federal Bar Association, UT School of Law, Volunteer Legal Services, and a UT LAWYER School of Law AUSTIN AL AL student representative.

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A Brief History of the Austin Bar's LGBT Law Section/ Austin LGBT Bar Association Sponsored by the Austin Bar’s History and Traditions Committee.

n a balmy June night in San Antonio, three attorneys—Gary Schumann, Fred Sultan, and Jim Shead—attended a presentation by the State Bar of Texas's LGBT Law Section at the 2011 State Bar conference. Knowing firsthand the many legal hurdles facing LGBT Texans, the three attorneys wondered why there was no local chapter in Austin. After the conference, Schumann contacted DeLaine Ward, executive director of the Austin Bar Association, to ask about establishing a local LGBT chapter. To his surprise, she responded that she had been waiting for someone to call and ask! With the support of the Austin Bar, the trio of attorneys and others organized the inaugural Austin LGBT Bar Association champagne social in 2013. Hosted at the historic Cambridge Tower rooftop, the night was a great success and attended by dozens of members of the Austin legal community. As the bubbles flowed and glasses clinked, the Austin LGBT Bar Association was born. The organization was originally founded as a standalone group, apart from the Austin Bar. This was a strategic move to lobby the Texas Legislature. Ironically, many early members were also legislative staffers who reserved the Civil Rights Conference Room outside of the Texas Senate chamber. Schumann recalls the early

ABOVE: Presenting the 2016 LGBT Law Student Scholarship: (L-R) Claire Bow, scholarship recipient Anya Morgan, Gary Schumann, Christine Andresen, Elliot Beck, Fred Sultan, Daniel Collins, scholarship recipient Luis Medina, and then-State Bar of Texas board chair David Chamberlain.

membership had both straight attorneys and LGBT attorneys. This dynamic membership’s motivation to form a local LGBT Bar was not solely to organize local attorneys or fight for civil rights, but also to better educate local family law attorneys on how to deal with the multitude of conflicting laws impacting LGBT families in Texas. Prior to the U.S. Supreme Court’s landmark decision in Obergefell v. Hodges, Texas law did not recognize same-sex marriage, divorce, or recognize two same-sex parents of a child as legal guardians. These laws created a myriad of problems and legal limbo for same-sex couples who married and had children outside of Texas. To help serve the Austin LGBT community, the organization held CLEs and seminars on how to navigate this complex legal

This dynamic membership’s motivation to form a local LGBT Bar was not solely to organize local attorneys or fight for civil rights, but also to better educate local family law attorneys on how to deal with the multitude of conflicting laws impacting LGBT families in Texas. 12

AUSTINLAWYER | JUNE 2021

arena, becoming the lodestar for local LGBT legal education. After Obergefell, the LGBT Bar assessed the legal climate and merged into the Austin Bar in 2019. Now known as the LGBT Law Section of the Austin Bar, the group has 68 members and continues to host CLEs on LGBT issues and raise money for mentoring programs and scholarships for LGBT Texas law students.

As the organization looks to the future, the commitment to serve all the members of the LGBT community remains steadfast. As Schumann sees it, “transgender rights remain very much a work in progress” and, as a result of the organization’s educational outreach, Travis County judges are now some of the most educated judgesLAWYER on transgender AUSTIN L AL rights in the A state.

BELOW: LGBT Bar Association board meeting at the Capitol Civil Rights Conference Room near the Senate chambers.

JUNE 2021 | AUSTINLAWYER

BRIEFS NEW MEMBERS

toring young attorneys should be evident as well as a strong moral compass to guide both professional and personal pursuits.

The Austin Bar welcomes the following new members: Dominic Castillo

NEW TO THE OFFICE

Lynne Gerganess John Howell Jordan Silverman Lewis Tandy Kerrie Vacalis

ABOVE: (from left): Greer, King, Tandy

AWARDS

Marcy Hogan Greer of Alexander Dubose & Jefferson will be presented with the Gregory S. Coleman Outstanding Appellate Lawyer Award from the Texas Bar Foundation at their annual dinner held on June 18, 2021 at the Omni Hotel in Fort Worth. Yetter Coleman established the Gregory S. Coleman Outstanding Appellate Lawyer Award in 2011 in memory of Gregory S.

Coleman. The award celebrates the high ideals and standards that Coleman demonstrated in his appellate practice and personal life. Greer exemplifies the criteria used to select the award recipient: The recipient should exhibit an outstanding appellate practice while maintaining a strong commitment to providing legal services for the underserved. Dedication to men-

Mary Ellen King has joined the firm of Richie and Gueringer. King has 18 years of experience in commercial litigation, eminent domain, business litigation, and complex insurance litigation. Fritz, Byrne, Head and Gilstrap is pleased to announce that Lewis J. Tandy has joined the firm as a commercial litigation associate in its Austin office. Prior to joining the firm, Tandy served as a federal judicial law clerk to the Honorable Alan D. Albright, United States District Court for the Western District of Texas.

SUBMIT A BRIEF If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing, and are subject to editing.

AUSTINLAWYER | JUNE 2021

Announcements should include all pertinent information including firm name, address, and contact numbers. Send submissions along with a high-resolution head shot to Austin Lawyer Managing Editor Nancy Gray at Nancy@austinbar.org.

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Surviving the Summertime Slow-Down BY NIKKI G. MAPLES of the slower days and meet a colleague for coffee, then head to the office. We all know that, sometimes, a simple conversation over a cup of coffee can lead to the next referral.

Gifts

Nikki Maples has been in the family law arena for more than 20 years and has practiced family law exclusively for more than a decade. While she is driven to find creative and smart solutions for her clients, she is equally invested in her work-life balance, which starts with living a healthy lifestyle.

t seems undisputed and relatively common for law practices to slow down or experience a different rhythm during the summer months. For years, I have heard lawyers discuss the fretting that takes place as the summer months approach – fear of business slowing down, worry about a decrease in income, angst about how to keep support staff busy, anxiety about how to…relax. The slower months don’t have to be so downtrodden—there’s a silver lining in most things, right? Consider some of these ideas to help pass the time during the summer months.

HEALTHY PROFESSIONAL IDEAS

Network

This is the perfect time to log in a few outdoor happy hour gatherings and lunches. When business is booming, it is all too easy to skip a conference or bail on a get-together. Take advantage 16

AUSTINLAWYER | JUNE 2021

Ramp up your marketing by sending gifts to your top five referral sources. Since you have a little time on your hands, put some thought into the gifts. If one of your referral sources has little kids, consider a gift card to a water park or to the movies for the whole family to enjoy. Or, since it is summer, a fun box of margarita makings usually puts a smile on faces.

Clean Out Your Desk

Seriously, the lulls are intended as a reset. Get organized. Purge the old articles and mailers that you’ve promised yourself that you’ll read…accept it, it’s not going to read itself (or, use this time to actually read that stack of newsletters). When our law practices are buzzing with energy and tons of work, we don’t stop to tidy our workspace, we shift and stack piles (admit it, we’ve all done it!).

Update Your Online Presence

Personally, I procrastinate on this task. I admire my peers who stay active on social media. Your internet presence is a marketing form that is tried and true; however, it takes time and consistency. Frankly, I don’t always find myself all that interesting and I oftentimes end up remarking on someone else’s post. The slower summer months can easily be dedicated to revamping or boosting your online and social media presence. Maybe even schedule some new headshots with your glowing sun-kissed face since it’s summer.

Review and Revise Goals

Brilliant! Remember the whole ‘build it and they will come’ pitch? We know it’s true. Put that ol’ faithful pen to paper and outline some new professional and personal goals. Take your legal pad, a pen and a pair of sunglasses and go outside. Go hang out in the sun, away from your electronics, and give yourself the mental space to look at the next five years. There’s no need to go crazy and build out more than five years. Part of this exercise is to help you stay present. Start with envisioning where you want to be in five years. Where (physically) will you be? What will you be doing? What do you want to be earning? What does your case load look like? What does your family dynamic look like? Then, put a few measurable goals in place. Ta-da! Now, you have a fresh, new roadmap to success.

lucrative business. So, if business is slower, then capitalize on that time and invest in your mental health. Also, there’s no better time like the present to do a little yoga or meditation. So, whip out your smart phone and download one of the millions of free apps for a guided meditation or yoga session. You can do it, I promise… and take your yoga mat outside. It’s summer, get hot and sweaty, cleansing does a body good.

Hydrate!

No joke, friends. We live in Texas and it’s HOT! It is necessary to hydrate, especially if there is a need to counterbalance the happy hour cocktails. We’ve heard this lecture most of our lives, but that’s because it matters. Guzzle the water and take care of yourself. If you are dehydrated, your brain literally cannot perform at a healthy level. Ok … lecture over (for now).

Go hang out in the sun, away from your electronics, and give yourself the mental space to look at the next five years. HEALTHY PERSONAL IDEAS

Exercise

Don’t overthink it, just do it. Any exercise is good exercise, just move your body. Go for a Relax walk. Start taking the stairs in For the love of all sanity, take your office building. Head to a vacation! Treat yourself to a Barton Springs and swim around. getaway. Blow it out or keep it Treat your body to a little TLC simple, but step away from the by waking up those muscles and monotony of your workspace, tendons. Or, spend some time in especially if you are working from your yard or in the park home. Recharge the batteries. The reality is that most of us Whatever you need to do unplug can anticipate the seasons and and escape for a handful of days, cyclical nature of our practices. do it, plan it, make it happen. For So, plan for it. There is no reason those of us who earn a living by to sit around and fret. This time the billable hour, it is harder to can be used to recharge the be talked into a vacation when mental batteries and plan for a the billable hours are strong and healthy and successful uptick in the dollar signs are showing up. business as the summer comes to LAWYER If we step away from the intensityAUSTIN L AL anAend. of the busy months, it can feel like we are walking away from

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Sentence Length Managing Averages and Maximums BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

egal writing has a bad reputation for long sentences. Why? Maybe reading cases in law school starts us off poorly. After all, the cases in casebooks weren’t chosen because they were beautifully written. Plus, legal writers often face short deadlines and might end up sacrificing some editing. And legal writers address complex matters—matters requiring explanation, qualification, and clarification. But we can do better. First, we can let go of the thought that a concept and everything that qualifies that concept must be in a single sentence: “[Lawyers] think that in order to achieve clear understandings, they must stuff every related idea into a single sentence between an initial capital letter and a final period. They are, of course, wrong.”1 Second, we can educate ourselves. Here’s what the experts say about average sentence length and maximum sentence length. AVERAGE SENTENCE LENGTH What’s a good average length? The experts say— • “below 25 words”—Richard Wydick2 • “about 22 words”—Laurel Currie Oates & Anne Enquist3 • “about 20 words”—Bryan Garner4

That’s the average—some shorter, some longer. All the experts quoted above agree that variety in sentence length is important. And when you write about complex subjects, push the length down: “The basic rule is this: The more complicated your information is, the shorter your sentences should be.”5

Ask yourself these questions: Is my average sentence length appropriate for the subject and the audience? Are all the sentences about the same length, or do I have good variation?

You can program Microsoft Word to tell you your average sentence length. Go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spell-check, you’ll see a display that includes your average sentence length, along with other information. (Note: A document with legal citations will usually show a shorter-than-actual average sentence length because of all the abbreviations and periods.) Now ask yourself these questions: Is my average sentence length appropriate for the subject and the audience? Are all the sentences about the same length, or do I have good variation? Do I have too many short sentences, so that my writing is choppy? Based on your answers, edit your sentences. MAXIMUM SENTENCE LENGTH How many words is too long for one sentence? It’s a tough question, and the experts don’t offer much guidance. Here’s mine.

Are you confident you could write a readable, clear sentence of more than 45 words? I’m not sure I could, so that’s the limit I apply to my own writing. Of course, some gifted writers can create long sentences that are pleasant to read; they usually use lengthy parallel phrases in a series. That technique works well in literature. But for most of us doing legal writing, staying under 45 words will work better. When I write a single sentence that goes over 45 words, I usually break it up. But it’s not realistic for a busy legal writer to count words while writing. When you’re writing your first draft, let your creative mind produce the text without interference from your internal editor. Let the text—and the ideas—flow. Then shorten long sentences on the edit. When you encounter a single sentence that bogs you down, tires you out, or annoys you, highlight it and look at the word count. If the word count is over 45, re-work the sentence or break it up.

So those are the three goals for sentence length: • readable average length; • variation in length; and AUSTIN LAWYER L AL • nothing tooAlong. Footnotes 1. Ronald L. Goldfarb & James C. Raymond, Clear Understandings: A Guide to Legal Writing 47 (1982). 2. Richard Wydick, Plain English for Lawyers 36 (6th ed. 2019). 3. Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 523 (5th ed. 2010). 4. Bryan A. Garner, Legal Writing in Plain English 47 (2d ed. 2013) 5. Steven D. Stark, Writing to Win: The Legal Writer 46 (2012).

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THIRD COURT OF APPEALS CIVIL UPDATE The following are summaries of selected civil opinions issued by the Third Court of Appeals during April 2021. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 7, 2021.

> PUBLIC INFORMATION ACT: Third party can sue to protect its confidential information from disclosure. Qatar Found. for Educ. v. Zachor Legal Inst., No. 03-20-00129-CV (Tex. App.—Austin April 15, 2021, no pet. h.). Zachor sought information from A&M that implicated Foundation. Foundation sued AG under the PIA. AG issued opinion that the requested information was protected from disclosure. Zachor filed a plea to the jurisdiction, contending Foundation, as a third party, was not authorized to challenge the AG opinion. The trial court granted the plea and dismissed. The court of appeals, relying on Boeing v. Paxton, held that the PIA permits a third party to raise exceptions to disclosure with the AG or in district court. The court reversed and remanded. ADMINISTRATIVE LAW: Elements of a claim necessary to prevail are not jurisdictional. Best Buy Stores, Inc. v. Hegar, No. 03-19-00246-CV (Tex. App.—

Austin April 16, 2021, no pet. h.) (mem. op.). Comptroller filed a plea to the jurisdiction, contending that because Best Buy had not refunded the overpaid sales taxes to consumers, there was no jurisdiction over the refund suit. The trial court granted the plea. The court of appeals held that the statutory requirement to refund to consumers addresses the right to relief; it is not a jurisdictional prerequisite. The court further held that Best Buy had suffered no concrete injury and thus lacked constitutional standing. The assignees only have the standing of the assignor, Best Buy. Accordingly, there was no standing. The court affirmed. TCPA: Allegations in amended pleading that do not alter the essential nature of claims, do not restart the deadline to seek dismissal. San Angelo Comm. Med. Ctr. LLC v. Leon, No. 03-19-00229CV (Tex. App.—Austin April 29, 2021, no pet. h.) (mem. op.). Doctor sued hospital alleging tortious interference, restraint of trade, and fraud that eliminated doctor from the pool of local cardiologists. After doctor filed a third amended petition, hospital filed a TCPA motion to dismiss. The trial court granted the motion in part without stating the basis. The court of appeals concluded that the motion to dismiss was timely as to the allegations in the third amended petition but

not timely as to the allegations in the earlier-filed petitions. The court noted that an amended pleading that does not alter the essential nature of an action does not restart the deadline to file a motion to dismiss. The amended petitions added specifics about patients but did not alter the essential nature of the claims. Accordingly, the court held that trial court did not err in denying the motion to dismiss as to claims in the earlier-filed allegations. TRIAL PROCEDURE: Res judicata does not bar a suit for damages filed after an order of contempt. Leavitt v. McLane Co., Inc., No. 03-19-00529-CV (Tex. App.—Austin April 29, 2021, no pet. h.) (mem. op.). McLane was successful in a criminal contempt proceeding against Leavitt, a former employee, for violating an agreed injunction. McLane eventually sued Leavitt for breach of their separation agreement and the agreed injunction. The trial court rendered judgment on a jury verdict for McLane. Leavitt contended that McLane’s claims were barred by res judicata. The court of appeals noted that res judicata bars a subsequent suit only if it arises out of the same subject matter and through diligence could have been litigated in the prior suit. The court held that because a party cannot recover damages in a contempt proceeding, as a matter of law,

Laurie Ratliff, a former staff attorney with the Third Court of Appeals, is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.

McLane could not have brought its breach-of-contract claims in that proceeding. Further, the trial court that held Leavitt in contempt did not have jurisdiction over the AUSTIN breach-of-contract LAWYER AL AL claim. The court affirmed.

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THIRD COURT OF APPEALS CRIMINAL UPDATE and driving on the improved shoulder of the roadway.

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals from November 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 1, 2021.

TRAFFIC STOPS – DRIVING ON IMPROVED SHOULDER OF ROADWAY: Trial court erred in concluding that officer did not have reasonable suspicion to believe driver had committed traffic offense. State v. McMahan, No. 03-1900824-CR (Tex. App.—Austin Nov. 6, 2020, no pet.) (mem. op., not designated for publication). McMahan was arrested for driving while intoxicated following a traffic stop. Prior to trial, he filed a motion to suppress, arguing that the arresting officer did not have reasonable suspicion to believe that he had committed a traffic offense. The trial court granted the motion to suppress, and the State appealed. On appeal, the State argued that the officer had reasonable suspicion to believe that McMahan had committed the offenses of failing to maintain a single lane of traffic 22

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The appellate court agreed with the latter contention. Under Transportation Code Section 545.058(a), an operator of a motor vehicle “may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only” to achieve one of several enumerated purposes. Those purposes are: (1) to stop, stand, or park; (2) to accelerate before entering the main traveled lane of traffic; (3) to decelerate before making a right turn; (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; (5) to allow another vehicle traveling faster to pass; (6) as permitted or required by an official traffic-control device; or (7) to avoid a collision. The court observed that there was “nothing in the record to suggest that McMahan’s driving on the shoulder of the road was unsafe,” but there was also nothing to show that driving on the shoulder “was necessary to achieve one of the seven purposes specified in the statute.” The statute “requires that driving on the shoulder of the road be both safe and necessary.” In other words, a person commits an offense if his driving on the shoulder of the road is either unsafe or unnecessary. Here, it was unnecessary. Thus, the officer had reasonable suspicion to believe that McMahan had violated the statute, and the trial court erred to conclude otherwise. The Court reversed the trial court’s order. SEXUAL ASSAULT OF CHILD – DEFENSE OF “WITHIN THREE YEARS” AGE DIFFERENCE BETWEEN DEFENDANT AND VICTIM: Trial court did not err in refusing defendant’s request for instructions on defenses of mistake of fact and mistake of age.

Campos v. State, No. 03-1800788-CR (Tex. App.—Austin Nov. 20, 2020, pet. ref’d) (mem. op., not designated for publication). Campos had sex with a fourteen-year-old girl when he was eighteen years old. The sexual-assault statute provides an affirmative defense to the offense of sexual assault of a child if “the actor was not more than three years older than the victim” at the time of the offense and the victim “was a child of 14 years of age or older.” Further, “[i]t is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Campos argued that he reasonably believed that the child was less than three years younger than him and, therefore, that he was entitled to the statutory mistake-of-fact jury instruction regarding the affirmative defense.

The appellate court disagreed, observing that the State did not have to prove a culpable mental state as to the age of the child to prove the elements of the offense. Thus, a mistaken belief about a complainant’s age does not negate the “kind of culpability required for commission of the offense.” The court further concluded that Campos was not entitled to an instruction on the within-three-years defense. Although there was evidence that the child told Campos that she was fifteen or sixteen years old, “the applicability of the withinthree-years defense is predicated on the actual age difference between a defendant and a child.” The evidence was undisputed that the difference between the actual ages of the defendant and the child when they had sex was more than three years. Thus, the evidence didAUSTIN not raiseLAWYER this AL AL defense. The Court affirmed.

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FEDERAL CIVIL COURT UPDATE The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 7, 2021.

> STANDING: Plaintiff who learns of Americans With Disabilities Act violation must establish some concrete interest in offending party’s compliance with ADA to maintain standing. Laufer v. Mann Hosp., L.L.C., No. 20-50858, 2021 WL 1657460 (5th Cir. Apr. 28, 2021). Laufer sued Mann Hospitality, owner of the Sunset Inn in Caldwell, Texas, under the Americans with Disabilities Act. She alleged the inn’s information, posted on third-party booking websites, failed to identify rooms accessible to disabled persons like her. However, Laufer, a Florida resident, had no definite plans to travel to Texas, nor did she try to or intend to book a room at the Sunset Inn. Rather, she considers herself a “tester,” monitoring places of public accommodation and suing to ensure compliance with the ADA. She filed hundreds of identical lawsuits across the country. The district court dismissed her claim for lack of standing finding that Laufer had suffered no injury in fact. In affirming, the Fifth Circuit held that Laufer lacked standing because she failed to show a concrete injury. Laufer claimed she visited the website to review and assess the accessible features at the inn and ascertain whether the website contained the information required by ADA regulations. But she had no plans to use the information or the inn’s services. At most, she could only attest to a general intent to visit the area someday and the need to stay in inns at that time. Thus, the court held that Laufer failed to show that she had a concrete interest in the Sunset Inn’s compliance with ADA regulations that was at risk. Laufer

attempted to cure this deficiency by framing her harm as an “informational injury,” relying on cases holding that the inability to obtain statutorily required information can constitute a concrete injury. The court held, however, that an informational injury is sufficient for standing purposes only when the information in question has some relevance to the plaintiff. Laufer could not make this showing because she lacked concrete plans to book a stay at the inn. Finally, Laufer argued that as a self-proclaimed “ADA tester” she did not need to show injury in fact for standing cases. Laufer relied on the Supreme Court’s seminal “tester” case, Havens Realty v. Coleman, 455 U.S. 363 (1982), where a tester plaintiff was “the object of a misrepresentation made unlawful under § 804(d)” of the Fair Housing Act. The Fifth Circuit found that case distinguishable because the Fair Housing Act forbade misrepresenting the information to “any person,” and the information therefore had “some relevance” to the plaintiff. The ADA contains no similar provision. The Court affirmed. TRADEMARK INFRINGEMENT: Evidence of selling products across state lines is not necessary to satisfy Lanham Act’s “use in commerce” requirement, and failing to abide by all laws and regulations governing use and sale of trademarked products does invalidate one’s trademark. Perry v. H. J. Heinz Co. Brands, L.L.C., 994 F.3d 466 (5th Cir. 2021). Perry makes Metchup, a blend of either Walmart-brand mayonnaise and ketchup or Walmart-brand mustard and ketchup. Perry sells Metchup exclusively from the lobby of a nine-room motel adjacent to his used-car dealership in Lacombe, La. He has registered Metchup as an incontestable trademark. Since 2010, Perry has only produced 50-60 bottles of Metchup, which resulted in about $170 in sales and $50 in profit. He owns www. metchup.com but has never sold

Sameer Hashmi is an associate at Scott Douglass McConnico who practices complex commercial litigation across Texas and around the country.

Metchup online. Heinz makes Mayochup, which is solely a blend of mayonnaise and ketchup. After Heinz released Mayochup for sale in the United States, Perry sued Heinz for, among other claims, trademark infringement. Heinz filed a counterclaim to have Perry’s Metchup trademark registration canceled for abandonment or nonuse. The district court dismissed Perry’s claims and, relevant here, canceled Perry’s trademark registration because it found that Perry had, as a matter of law, abandoned his trademark. Fifth Circuit affirmed the district court’s dismissal of Perry’s claim but reversed the trial court’s findings on abandonment. Under the Lanham Act, a mark is abandoned when its use has been discontinued with intent not to resume its use. “Use” under the Lanham Act means “use in commerce” that is bona fide as opposed to use merely to preserve a right. The district court concluded that Perry abandoned his trademark because he failed to produce evidence of sales of Metchup outside of Louisiana or to non-Louisiana residents. The Fifth Circuit rejected this conclusion for two reason. First, the court held that that evidence of commerce crossing state lines is not necessary to satisfy the Lanham Act’s “use in commerce” requirement. Second, the court concluded that the district court

David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.

misplaced the burden of proof on Perry to show that he satisfied the “use in commerce” requirement. Perry testified that out-of-state motel guests purchased Metchup, and Heinz had the burden to prove otherwise by presenting strict proof discrediting Perry’s testimony. The Fifth Circuit also rejected the district court’s holding that Perry abandoned his trademark by omitting from Metchup labels certain information required by state and federal food labelling regulations. That holding relied on the unlawful use doctrine, under which the failure to abide by all laws and regulations can turn what would otherwise constitute “use” into “non-use.” The Fifth Circuit, however, declined to adopt that doctrine. Nevertheless, the Fifth Circuit remanded the case back to the district court because a fact issue remained as to whether Perry’s use of the Metchup mark was bona fide use or whether he was simply making sporadic use of the mark to maintain his trademark rights. Perry had a history of acquiring domain names with no intention of using them and with hope to sell them for a profit. The evidence suggested that Perry may be doing the same thing with the Metchup trademark due to his lack of effort to grow the sales of Metchup for ten years. The court left thatLAWYER issue for the jury to decide AUSTIN AL AL on remand. JUNE 2021 | AUSTINLAWYER

CRIMINAL COURT NEWS

A Long, Healthy Life (Without Parole) BY DAN DWORIN

D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.

t a time when prosecutors around the country, including in Travis County, are experimenting with alternatives to long prison sentences, the U.S. Supreme Court recently seemed to backtrack from a line of cases limiting the application of the harshest punishments to juvenile offenders. In Jones v. Mississippi,1 the Court considered a life without parole (LWOP) sentence for a juvenile convicted of murder. Despite its prior holding that mandatory LWOP sentences for offenders younger than 18 at the time of their crime violated the Eighth Amendment’s prohibition of “cruel and unusual” punishment because such a punishment failed to allow for the “youth and its attendant characteristics” of the offender,2 the Jones court held that so long as the trial court judge was not bound to sentence an offender to LWOP, the holding of Miller didn’t require a specific finding that the juvenile was beyond redemption. In other words, so long as the statute didn’t provide a mandatory LWOP, a sentencing judge could still choose to impose LWOP on a juvenile, even though the whole justification for the rule in Miller was that very few 24

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juvenile offenders’ crimes reflect “irreparable corruption.” The Jones majority made clear that the rule in Miller did not mandate specific fact-finding regarding “irreparable corruption” or the like. Rather, the Court opined that Miller merely prohibited mandatory LWOP, in which the characteristics of youth could not be considered. Justice Sonia Sotomayor wrote a strongly-worded dissenting opinion in Jones, accusing the majority of “gutting” the holding of Miller without specifically overruling it, thus doing an endrun around the notion of stare decisis. If the rationale of Miller was based on the notion that very few juvenile offenders met the characteristics of “irreparable corruption,” then surely the Court required judges to engage in some kind of fact-finding regarding the characteristics of the child in question, Sotomayor wrote. Justice Kavanaugh, writing for the majority, characterized the disagreement between the dissenters and the majority as a “good-faith disagreement”

Under the reasoning in Jones, the Supreme Court may have just signaled an about-face on application of the Eighth Amendment to state sentencing schemes. about what Miller required. impose LWOP on a juvenile The ruling in Jones seemed to murder defendant without the be a significant slowdown, if not need for any specific findings full retreat, from what had been regarding the irredemability of a steady progression of rulings a child, so long as the sentence sparing juveniles from facing is not mandatory. Given the the harshest punishments. The Supreme Court’s holding, and Court previously had barred the reasoning, in Jones, the states, application of the death penalty and individual prosecutors and to juveniles.3 The Court had also judges, will likely now be the only barred the use of LWOP sentencforces in continuing to ensure es for juveniles not convicted of the momentum of restricting murder.4 And then subsequently AUSTIN the harshest punishments for LAWYER AL AL in Miller, the Court had seemed juveniles. to suggest that LWOP should Footnotes be used only under the rarest 1. 593 U.S. ____ (April 22, 2021). 5 of circumstances. Under the 2. Miller v. Alabama, 567 U.S. 460 reasoning in Jones, the Supreme (2012). 3. Roper v. Simmons, 543 U.S. 541 Court may have just signaled (2005). an about-face on application of 4. Graham v. Florida, 560 U.S. 48 (2010). the Eighth Amendment to state 5. 567 US 460 (2012) (made sentencing schemes. retroactively effective in Montgomery v. Louisiana, 577 U.S. 190 (2016)). Now, a sentencing judge can

Donate to Help Children at the Civil and Family Courts Facility Austin Bar/AYLA Leadership Academy Class of 2021 Class Project

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ear Friends of the Austin Bar, The Austin Bar/ AYLA Leadership Academy Class of 2021 is working on a class project. We invite you to join us in fundraising for the new Travis County Civil and Family Courts Facility that will open in 2023. Specifically, we are looking for monetary donations or books, games, and toys to supply the children’s playrooms. The Court Facility already has designs for three separate playrooms based on age groups: toddlers, kindergarteners, and elementary-aged children. When children are at court for family or juvenile law cases, it can be scary; having playrooms where they can be entertained while they wait to see the judge does Children's Rooms a great deal to help alleviate the roject: Travis County Courthouse anxiety and fear associated with evel 02 Children's Rooms an otherwise traumatic time. Project: Travis County Courthouse LevelYou 02 have the opportunity to instill joy in a child during the time that he or she is at the court-

house. The Leadership Academy Class has set up an Amazon Wish List with suggested items that are available for you to purchase. The Wish List can be found here: https://amzn.to/33rYCgG. Simply choose the items from the Wish List that you’d like to donate and purchase them through Amazon. To ensure that we acknowledge donations of $100 or more, please include your name in the gift message and email your receipt to Stephanie Bloomquist at stephanie@ abloomquist.com. Alternatively, you may make a monetary donation. Cash donations are accepted via Venmo (@AustinBarFoundation); via check payable to Austin Bar Foundation, mailed to 712 W. 16th Street, Austin, TX 78701 with “Courthouse Children’s Playroom” in the memo line; or by credit card at austinbar. org/austin-bar-ayla-leadershipacademy.

Please note that if more funds are raised than the courthouse facilities can use for the playrooms, the excess funds will be donated to the Austin Bar Foundation. Donations of $100+ will be recognized on the Austin Bar website and donations of $200+ will be also be recognized in Austin Lawyer magazine. Please consider donating by June 30, 2021 to help make the children’s playrooms safe and fun spaces for children at the Civil and Family Courts Facility. The Leadership Academy Class of 2021 appreciates your support and generosity. Sincerely, The 2021 Austin Bar/AYLA Leadership Academy Class

JUNE 30 DONATION DEADLINE Help purchase supplies for children's playrooms at the Travis County Civil & Family Courts Facility. Questions? Email stephanie@ abloomquist.com

Kristy Blurton, Alexa Cedillo, Eric D. Cuellar, Jillian Michelle French, Alana Goycochea, Will Hailey, Alec Herzog, Hunter Hudson, Thomas M. Just, Kiera Lee Kilday, Alan Lin, Stephanie A.H. Louie, Daniella Deseta Lyttle, Kara L. O’Shaughnessy, Daniel Olds, Maximilian Raileanu, AUSTIN LAWYER Hannah Marie Vahl, and Mariana AL AL Lozano Villarreal

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Planned children's rooms at the Travis County Courthouse. Plan and renderings courtesy of Gensler (lead building designer) and CGL Companies (courts designer). JUNE 2021 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN DAVID KING, ARMBRUST & BROWN

A Look Back: A Year Like No Other

ere we are at the end of the 202021 bar year. As we wind down the year, we’re all excited to return to the in-person events that are the hallmarks of AYLA (starting with a bar-year kickoff at Hilgers House in August and our annual Evening with the Judiciary at the Austin Club in September). But, here at AYLA, we’re also proud of what we accomplished during a year of unique challenges We highlighted equity. Not only did this bar year began in the middle of a pandemic, but it also began amidst wide-spread public acknowledgment of and activism regarding racial injustice in the wake of George Floyd’s murder. (I stop short of calling this a reckoning, which implies that a resolution has been reached; we’re not there yet.) AYLA partnered with the Austin Bar (under the dedicated leadership of Austin Bar President Kennon Wooten) to contribute to the discussion. In July, the AYLA board of directors held a special meeting to consider the online commentary of State Bar of Texas President Larry McDougal, and, on July 24, 2020, AYLA joined the Austin Bar in issuing a resolution to support proposed changes, including requiring anti-racism/implicit-bias training and providing funding to the Office of Minority Affairs to increase 26

AUSTINLAWYER | JUNE 2021

programming regarding diversity and racial issues. Members of the AYLA board of directors also actively took part in the Austin Bar’s newly formed Equity Committee. We had fun—on Zoom. Inevitably, we also spent a lot of time on Zoom, and we learned how to make the most of it. In place of our typical, in-person “Docket Call” happy hours, AYLA put on virtual events every month of the year. We hosted virtual happy hours, trivia nights, a cooking class, a mixology class, a movie night, and “crafts and cocktails.” We invited members of our local judiciary to host intimate “coffee hours” with small groups of young lawyers. Our Fitness Committee organized a virtual 5K and Zoom yoga sessions. And we held our annual Evening with the Judicia-

ry, which garnered impressive attendance from all levels of the judiciary. We also organized CLE programs on topics ranging from Zoom court proceedings (in partnership with the UT Law School Board of Advocates), Employment Law and COVID-19 (with Austin Kaplan and Leslie Dippel), a “Law 101” series covering areas like estate planning and real estate, and larger-scale CLEs in partnership with the Austin Bar, including Bench Bar and the Government Law Symposium. We gave back to the community. Notwithstanding this year’s challenges, AYLA also continued to fulfill its mission of promoting community service. One stand-out event was AYLA’s 11th Annual MLK Day of Service project in January, which saw in-

credible turnout and enthusiasm from our members. We collected and delivered donations to twelve non-profits: Central Texas Food Bank, Austin Allies, Austin Area Urban League, Austin Urban Technology Movement, The Next Generation Project, Conduits for Change, BookSpring, The InsideBooks Project, Partnerships for Change, Seedling Mentors, We Are Blood, and Refugee Services Texas. We filled 27 spots for the We Are Blood bus—enough to keep the bus parked at Hilgers House all day—and we collected 665 pounds of donations for the Central Austin Food Bank. In December, we also organized our annual Holiday Program. While we couldn’t have the in-person festival we all love, AYLA was able to partner with the YMCA to raise money and collect gifts for 30 children, and our members had the pleasure of wrapping and hand-delivering the gifts to families across Austin. As in-person events become a reality in the second half of 2021, we are all looking forward to a return to normalcy at AYLA—and a fond farewell to our monthly Zoom events. In a year that began with great uncertainty over how AYLA, like so many other organizations, would adapt to the pandemic, it is remarkable and humbling to see how the organization nonetheless thrived—all thanks to AYLA’s most active members and board members, and, of course, its dedicated director, Debbie Kelly. It has been a challenging—but rewarding—year at AYLA. ThankLAWYER you to everyone AUSTIN L AL who’s takenApart.

AUSTIN YOUNG LAWYERS ASSOCIATION

Monthly Community Service Project Helps All AYLA Members Volunteer at Austin Public Health COVID-19 Vaccine Clinic

n April 24, 2021, the Austin Young Lawyers Association held its monthly Community Service Project, this time at the Austin Public Health COVID-19 Vaccine Clinic located in the Pflugerville Recreation Center. AYLA member volunteers helped people get their vaccination shots so we can all emerge from this pandemic. Volunteers assisted people with prepping the necessary forms that must be filled out prior to getting the vaccine. They also assisted those who were in wheel-

chairs, greeted and directed folks where to go, and helped people in line who had questions or concerns get answers or help. Special thanks to everyone who turned out to help! AYLA's monthly Community Service Project serves a local need and allows AYLA members the chance to get to know one another while volunteering together. If you would like to suggest an organization or volunteer opportunity for a future project, please contact Debbie Kelly at AUSTIN LAWYER AL AL debbie@austinbar.org.

AYLA Announces New Officers and Board Members

he Austin Young Lawyers Association announces its newly elected officers and members of the board of directors for the 2021-22 bar year. Taking office on July 1, 2021 are President Rachael Jones, President Elect Blair Leake, Treasurer Sarah Harp, and Secretary Emily Morris. New board members whose terms expire in 2023 are Eric Cuellar, Jenna Malsbary, Lena Proft, and Gracie Wood Shepherd The new board members will join Jessica MacCarty, Callie Haley, Ciara Parks, and Morgan Shell, whose terms will expire in AUSTIN LAWYER AL AL 2022.

Rachael Jones

Blair Leake

Sarah Harp

Emily Morris

Eric Cuellar

Jenna Malsbary

Lena Proft

Gracie Wood Shepherd

Jessica MacCarty

Callie Haley

Ciara Parks

Morgan Shell JUNE 2021 | AUSTINLAWYER

ENTRE NOUS

Excuse Me, Can Anyone Cash this Reality Check? BY CLAUDE DUCLOUX “You cannot teach a man anything; you can only help him find it within himself.” – Galileo Galilei, 1564-1642

continue to embrace the notion that truth, and our Quixotic mission to improve justice, are the most sacred of our duties as protectors of the rule of law. But everything I’ve learned about such notions proves we’re certainly not hard-wired to seek justice. Instead, we cling to false narratives which comfort us, and more importantly, disingenuously support outcomes we want. And we don’t like hearing from people who “disconfirm” our comfortable beliefs. (I read that new verb in a psychology article. I hope it catches on. It sounds polite. Wife to Husband: “I think it’s time for us to disconfirm our marriage.”)

instructed his students not to publish those six volumes until he was dead. Copernicus: brilliant and wisely torture-avoidant. Why is it that, with our astounding scientific abilities to discover and publish the truth, we instead continue to seek refuge in “closely held beliefs?” Because that is the only way we can justify the agenda which retains power. So, although we know 2 + 2 = 4, we assert that we have a right to believe that it is 7, or 11, depending on outcome served by that belief. And we dismiss the importance of the true answer with impunity. Such dismissal necessarily imperils freedom and justice. Here are two great examples: The right to vote

In an age when facts are more accessible than ever, we appear free to create our own. We watch smart people say stupid things every day. And usually in the name of “freedom.” Human history is simply awash with incredible and important discoveries by people who paid dearly for their brilliance. Easy figures come to mind: Galileo had the impudence to suggest that the earth was not the center of the universe aka “Aristotelian cosmology”—but rather, we revolved around the sun—the “Copernican heliocentric system.” This led to his prosecution by the “Holy” Inquisition, as my dear Catholic Church pronounced Copernican Theory heretical. Let me also remind you that Nicolaus Copernicus himself, who explained his theory in six detailed volumes, fearing certain condemnation (and the likelihood of very “Holy” re-education) by the Church, 28

AUSTINLAWYER | JUNE 2021

and the right to bear arms. We serve false truths in both cases to support political agendas. Despite 20 years of intense studies of voter fraud by the Brennan Center for Justice which revealed 31 proven cases over a four-year period, during which 1 billion votes were cast, our leaders, clearly shocked by such lawlessness, are creating unnecessary and unwarranted hurdles to keep you-know-who’s from voting. (In fairness, the conservative Heritage Foundation brandishes a tally of 1,312 instances of voter fraud, but that list goes back to the early 1980s, covering perhaps 10 billion total ballots, and includes such shocking “violations” as helping someone fill out a ballot.) The

creation of hurdles to voting is as shameful as it is transparent. But we don’t do “shame” anymore, do we? The famous psychologist Leon Festinger demonstrated that even when our theories are easily “disconfirmed,” we refuse to abandon them. Rather, we find ways to justify and adhere to them, finding comfort in fellow “believers.” So, while addressing the “crisis” in voter integrity, this same leadership feels completely comfortable ignoring the carnage of mass shootings in America. Take for example, during the same fouryear period of voter lawlessness which produced 31 fraudulent votes, for each one of those 31 votes, over 1,500 U.S. inhabitants have been murdered by guns (not including suicides). Hard to justify voter fraud as a civic priority, wouldn’t you say? Voter integrity? How about Congress’ constitutional duty to ensure domestic tranquility? “Sorry,” we’re told, “the Second Amendment says I get as many guns as I want.” And how do they reach that result? By also ignoring the conditional clause of the Second Amendment—requiring access to arms for a wellregulated militia, leaving only the unfettered right to bear arms. And where are the rightleaning “Originalists” in this, who say the constitution must be strictly interpreted based upon the circumstances existing when it was written—a time when

we had no army, no AR-15s, and we needed those muskets to defend the nation with “well-regulated militias” (not “volunteer,” not “medium-” or “somewhat-”regulated, but “WELL-regulated”)? Actually, the Second Amendment is much more understandable with that clause: We don’t have wellregulated militias. So we pretend it’s invisible. Sigh… In an age when facts are more accessible than ever, we appear free to create our own. We watch

smart people say stupid things every day. And usually in the name of freedom. Freedom, to some, means: “My right to infect you supersedes your right NOT to be infected.” Well, if that’s true, I don’t think I need to stop at stoplights, or obey speed limits. Personal freedom, ya know. The long-held principle of constitutional law, i.e., that public health and safety supersedes individual freedoms, is a figment of the past. I’m sure down through history our greatest minds have always faced such stupidity. For example, it was only around 150 years ago that British doctor Joseph Lister instituted hygienic practices. Lister understood that wounds made by accident or in surgery often resulted in infections—often called post-surgical “ward fever”. He, like Pasteur, believed that germs already existed in breath and on surfaces, and were not “spontaneously produced” by wounds. As expected, many doctors didn’t believe in “germ theo-

The long-held principle of constitutional law, i.e., that public health and safety supersedes individual freedoms, is a figment of the past. ry” (“Do you see any germs? I don’t see any germs.”). Despite relentless proof of effectiveness (deaths by infections following surgery dropped from 80% to 0%) and extensive publication of his findings, sadly, his own English doctors were the last to accept these principles, more than 12 years after publication. Fortunately, I found a wonderful historical source which demonstrated this principle with other historical figures. Here are some glimpses into famous discoveries and their reception by the beneficiaries of their work: Charles Babbage (1791-1871). Inventor of the first programmable computer. “Look, I’ve found a way to organize numbers for summation.”

Lord Sidmeuller. “But I have my own numbers. And a fine quill pen!” Daniel Bernoulli (1700-1782). Discoverer of the Bernoulli Effect —how wings generate lift. “You see, air passing over these curved surfaces will cause them to rise.” Louie la Bete. “It will never fly… Where are the feathers?” Euclid (c. 300 BC). Author of “Elements,” the most published mathematical work in history. “I can calculate for you the navigation you’ll need to travel to Cyprus.” Qanonicus. “Begone. Math is for witches. I use this stick.” Marie Sklodowska Curie (1867-1934). Polish-French physicist and chemist who won two Nobel Prizes and coined the term “radioactivity.” “I have developed

mobile X-ray machines for our soldiers in the field and I’ve just discovered two new elements: polonium and radium.” Dr. Moronique. “Sure you did. Now, run along and get me some bandages.” We lawyers have pledged to serve justice, truth, and the rule of law. Get involved wherever you can. Take every opportunity to push back on deceit and trickery postured as “freedom.” We owe it to our nation, our solemn oaths, and ourselves to be proud that we stay on the right side of integrity… and history. You’ll probably sleep better. As Galileo himself would urge us: Find the truth in yourself, and act upon it. AUSTIN LAWYER L AL Keep the A faith. The opinions expressed in the Entre Nous column are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

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www.LaurieRatliffLaw.com 512-422-3946 laurie@laurieratlifflaw.com JUNE 2021 | AUSTINLAWYER

PRACTICE POINTERS

A Little Birdy Told Me: The Beginner’s Guide to Twitter BY BONNIE C. FRAASE

Bonnie C. Fraase is a federal district court clerk and a former Texas Supreme Court clerk. She is a graduate of Virginia Law (J.D., 2019) and Baylor University (B.A., 2015). All views are her own.

n my childhood, the daily news landed with a thud on our driveway. Each morning, my dad—a former beat reporter—picked up the paper and inspected the headlines with rapt attention. From breakfast onward, the paper’s contents defined the day’s conversations. But these days, “the news” is not a curated collection of top stories, spelled out in ink and delivered once daily. These days, what’s trending on Twitter defines office chatter. And if you, like me, have a self-diagnosed allergy to social-media rants, then, like me, you may not have the answer when a colleague asks, “Did you hear [insert stunning development in Texas law here]?” “No,” I resignedly report, “I did not.” To cure my online-babble allergy and improve current awareness, I resolved to curate my own online news experience. I started with the obvious platform: Twitter. With a bit of effort, I’m now enjoying the steady stream of news updates. Here’s what I learned. Twitter is the “Speaker’s 30

AUSTINLAWYER | JUNE 2021

Twitter is the “Speaker’s Corner” of our modern times. To navigate the morass, begin by identifying who you want to follow and why. Corner” of our modern times. To navigate the morass, begin by identifying who you want to follow and why. I chose to follow legal thinkers and reputable news agencies because I want to glean developments in legal news. You may also consider following clients—an easy way to stay current on their concerns and celebrate their successes. Once you’ve selected a few handles to follow, Twitter will suggest similar accounts. Tap to follow and you’re off to the races. To expand your feed, you can follow hashtags or topics. For hashtags, I recommend “Appellate Twitter,” which lives up to its reputation as a font of legal savvy (and snark!). For topics, consider following “Texas” to gather local news or potpourri your feed with leisure-inspiring accounts like “luxury travel” or recent trends

like “bread making.” Having selected who you want to follow, take a moment to consider what you do not want to see. Jot down a list of words you consider triggering. Then take these three steps to hide them from your feed: 1. From the app menu, click on “settings and privacy.” 2. Then, click “content preferences.” 3. Finally, click “muted words” and “add” any words or phrases you would like to hide. Now you’re poised to play. Start scrolling your feed. And, this is critical: Take ownership of your feed. If an account generates irrelevant content, unfollow or hide it. On the other hand, if an account offers the most salient updates or smartest quips, freely like or retweet the post.

At this point, you have a steady stream of news in your feed. And perhaps the clickbait headlines leave you with the nagging feeling that you aren’t getting the full story. And maybe—just maybe— you’re growing nostalgic for the “full paper” experience. If that’s you, I may suggest supplementing your daily information diet with an Apple News or SmartNews subscription. Apple News and SmartNews are powerful aggregators of the leading media publications. I utilize Apple News to dig up the full story after finding the headlines that interest me most. As an added perk, the platform hosts the full text of dozens of magazines, from Bon Appétit to the Wall Street Journal. While Austin Lawyer isn’t yet available on these apps, you certainly can follow @theaustinbar on Twitter to keep current and connect with AUSTIN LAWYER AL AL local colleagues. Editor’s Note: You can download the free Issuu app and follow the Austin Bar to read electronic issues of Austin Lawyer.

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Austin Lawyer, June 2021

Articles inside

A Little Birdy Told Me: The Beginner’s Guide to Twitter

Monthly Community Service Project Helps All

AYLA Announces New Officers and Board Members

AYLA: A Look Back: A Year Like No Other

Donate to Help Children at the Civil and Family Courts Facility

A Year In Review

Excuse Me, Can Anyone Cash this Reality Check?

Surviving the Summertime Slow-Down

Announcing New Officers and Members of the Board

A Brief History of the Austin Bar's LGBT Law Section/Austin LGBT Bar Association